Court may force DoD's hand on same-sex benefits

Jan. 9, 2013 - 08:03AM
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Last Updated: Jan. 9, 2013 - 08:03AM |

Army National Guard Maj. Shannon McLaughlin, left, cannot get Tricare coverage for her wife, Casey, although she can get it for the couple's two children, Grace and Grant. (Photo courtesy McLaughlin family)

The Supreme Court is likely to strike down parts of the 1996 law that bars the federal government from recognizing same-sex marriages, many legal experts say, a move that would open the door to big changes to the way the military treats gay couples.

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The Supreme Court is likely to strike down parts of the 1996 law that bars the federal government from recognizing same-sex marriages, many legal experts say, a move that would open the door to big changes to the way the military treats gay couples.

The court could force the federal government, including the Defense Department, to recognize the legal unions of gay service members who get married in one of the nine states where same-sex marriages are permitted.

"That could have a very broad effect on the military," said retired Marine Col. Jane Siegel, a former judge advocate who teaches at the Thomas Jefferson School of Law in San Diego. "All of these couples would be entitled to family housing  which they are not now. [Basic Allowance for Housing] with dependents would apply. Death benefits would apply."

If the Supreme Court strikes down core elements of the law the Defense of Marriage Act  the Pentagon would have to grant a full range of benefits to same-sex spouses, including Tricare health coverage, full access to military installations and facilities, and, for couples in which both members are on active duty, the option of joint military duty assignments.

The military lifted the ban on open service by gay troops in September 2011. Since then, however, DOMA has limited the Pentagon's ability to grant full benefits to same-sex couples who are legally married in New York, Washington, Maryland and six other states.

Of course, the Supreme Court could rule against same-sex couples. But legal experts say the fact that the court agreed in December to hear two DOMA-related cases early this year reflects support for overturning the law among at least several justices.

Many legal experts say it's unlikely that the court will issue a far-reaching ruling that will require all states to recognize same-sex unions. More likely is a narrow decision that would force the federal government to recognize all marriages approved under state law, experts say.

Specifically, the Supreme Court will hear the case of an 83-year-old woman from New York who is contesting a tax bill from the Internal Revenue Service after the death of her wife. The woman claims the federal government's refusal to recognize her state-sanctioned marriage is resulting in a $360,000 estate tax bill that would not apply to a heterosexual couple.

That decision will determine the outcome of another lawsuit that specifically addresses questions about military benefits. A small cadre of gay troops and veterans sued the Defense Department in October 2011, claiming that their denial of government benefits is unconstitutional.

Plaintiffs in that case include Massachusetts Army National Guard Maj. Shannon McLaughlin, 42, and her wife, Casey, 35. McLaughlin works full time for the Guard, and her Tricare benefits cover the couple's two children.

DOMA bars Tricare from covering Casey McLaughlin, so they must pay an additional $700 per month for private-sector health insurance.

"It's a major financial blow," McLaughlin said in a recent interview.

If the Supreme Court rules in favor of same-sex couples, some legal experts predict there will be little delay within DoD in translating the decision into policy changes.

"My expectation is that they will get right on board with the implementation, just as they have done with [the repeal of ‘don't ask, don't tell']," said Raymond Toney, a California attorney who specializes in military benefits.

There may be some cultural resistance  complaints about gay couples moving into family housing, for example  but that is unlikely to extend to the upper-level policymakers, Toney said.

"I think certainly at the level of Big Army and Big Navy, they are going to be onboard," he said.

But Siegel, who spent more than 30 years in uniform, said she wouldn't expect things to move that quickly.

"It would take the military a long time to handle these logistics to make all of these people eligible," she said. "And the military, in administrative matters, moves at the pace of molasses in the winter, uphill."